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1 Washington University Journal of Law & Policy Volume 28 New Directions in Clinical Legal Education January 2008 Filling the First Amendment Gap: Can Gideons Get Away with In-School Bible Distribution by Exploiting the Play in the Joints Between the Free Exercise and Establishment Clauses? Bryan K. Clark Follow this and additional works at: Part of the Law Commons Recommended Citation Bryan K. Clark, Filling the First Amendment Gap: Can Gideons Get Away with In-School Bible Distribution by Exploiting the Play in the Joints Between the Free Exercise and Establishment Clauses?, 28 Wash. U. J. L. & Pol y 403 (2008), This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Journal of Law & Policy by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu.

2 Filling the First Amendment Gap: Can Gideons Get Away with In-School Bible Distribution by Exploiting the Play in the Joints Between the Free Exercise and Establishment Clauses? Bryan K. Clark The First Amendment seems to leave little doubt about the role of government in religion: Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. 1 But from that one short sentence has come decades of disagreement. Supreme Court opinions extending back to the 1960s have construed the First Amendment as a unified command that government not give unique consideration to religion. 2 However, there has been dissatisfaction in recent years with the Court s categorical analysis of the First Amendment because it fails to account for the contours of the Amendment s multi-dimensional issues. 3 Despite these concerns, the First Amendment jurisprudence surrounding the distribution of religious materials in public schools was surprisingly clear for many years. Courts uniformly held that such a distribution would violate the Establishment Clause of the J.D. (2008), Washington University in St. Louis School of Law. Many thanks to my friends at the ACLU of Eastern Missouri for inspiring this discussion and sharing their thoughts along the way. 1. U.S. CONST. amend. I. 2. F. Phillip Manns Jr., Finding the Free Play Between the Free Exercise and Establishment Clauses, 71 TENN. L. REV. 657, 657 (2005) ( Government violates the Establishment Clause when it uniquely aids religion by granting an exclusive benefit to religion. Government violates the Free Exercise Clause when it uniquely harms religion by creating an exclusive detriment to religion. ). 3. The categorical distinctions that the Court has previously established speech occurring in the public forum versus speech occurring in the nonpublic forum, prior restraints versus subsequent punishments, and above all, content-based laws versus content-neutral laws are too rigid to adequately explain the complexity of First Amendment law. Wilson R. Huhn, Assessing the Constitutionality of Laws that Are Both Content-based and Contentneutral: The Emerging Constitutional Calculus, 79 IND. L.J. 801, 803 (2004). 403 Washington University Open Scholarship

3 404 Journal of Law & Policy [Vol. 28:403 First Amendment. 4 However, rulings in recent years have begun to shed some doubt onto this prohibition with regard to schools that allow the distribution of similar, nonreligious literature as part of a limited public forum. 5 Courts have held that school districts with limited public forum policies cannot discriminate on the basis of the group s religious message. 6 Less clear is whether these rulings will change the way courts deal with the distribution of Bibles by Gideons International. 7 For more than fifty years, part of the Gideons evangelical campaign has been the distribution of Bibles in public schools, 8 but the courts have an equally lengthy history of finding this practice unconstitutional under the Establishment Clause. 9 Under current case law it appears that a school district with a public forum policy could allow the Gideons to distribute Bibles with the support of the Free Exercise Clause. 4. See, e.g., Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160 (7th Cir. 1993) (holding that Gideon Bible distribution was unconstitutional). 5. When the Board acted to eliminate the absolute prohibition on private religious literature in the schools, the Board was not exhibiting any favoritism for religion in general or Christianity in particular, but was simply lifting one forum restriction on religious speech to which most other speech had never been subject and thereby permitting the distribution of Bibles and other religious material similar in character to material already permitted. Peck v. Upshur County Bd. of Educ., 155 F.3d 274, 280 (4th Cir. 1998) (citation omitted). Limited public forums are treated differently than traditional forums in that the state s restrictions on speech are subject to stricter scrutiny if it is a traditional forum. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106 (2001). When the State establishes a limited public forum, the State is not required to and does not allow persons to engage in every type of speech. Id. 6. Courts have allowed everything from the distribution of brochures for religious camps in Hills v. Scottsdale Unified School District, 329 F.3d 1044 (9th Cir. 2003), to the distribution of Bibles in high schools by non-student groups in Peck, 155 F.3d at Most Americans are accustomed to finding New Testament tracts provided by Gideons International in hotel rooms across the country. Berger, 982 F.2d at The Bibles typically provided to public school students by the Gideons contain the entire New Testament as well as the books of Proverbs and Psalms. Id. at The front pages of a Gideon Bible typically contain a picture of the American flag and blank lines so that students can fill in their names under the phrase Presented to. Id. at The goal of Gideons International is to win men and women for the Lord Jesus Christ by providing Americans with Bibles. Tudor v. Bd. of Educ., 100 A.2d 857, 858 (N.J. 1953) (citation omitted). 8. Tudor, 100 A.2d at Id. at 868 ( To permit the distribution of the King James version of the Bible in the public schools of this State would be to cast aside all the progress made in the United States and throughout New Jersey in the field of religious toleration and freedom. ).

4 2008] Filling the First Amendment Gap 405 The conflict between the countervailing interests of the Free Exercise Clause and the Establishment Clause with regard to inschool Bible distribution has been brewing in the court system for many years. The Supreme Court has never ruled directly on the distribution of Gideon Bibles, but its various rulings in other churchstate matters 10 have left courts in the position of trying to balance the interests protected by the Free Exercise Clause and Establishment Clause. 11 These issues have been raised most recently in the case of Doe v. South Iron R-1 School District in the Eastern District of Missouri. 12 In South Iron, the school district claims that because it has an open forum policy, it cannot prevent the Gideons from distributing Bibles in the school without violating the Free Exercise Clause. 13 Judgments on the federal constitutional issues have gone against the school district, largely because the court has been reluctant to accept that the district actually has a public forum in place. 14 Still, the case raises an 10. Widmar v. Vincent, 454 U.S. 263 (1981) (holding that a public university may not deny a student group access to campus facilities based on its religious content). See generally Lemon v. Kurtzman, 403 U.S. 602 (1971) (establishing a three-part test for First Amendment religion issues, indicating that in order to avoid conflict with the religion clauses of the First Amendment, the statute must have secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion, and it must not foster excessive government entanglement with religion). 11. See generally Berger, 982 F.2d at 1160 (holding that distribution of Bibles is unconstitutional under the Establishment Clause and Gideons do not have a free speech right to distribute Bibles in schools under the Free Exercise Clause). But see Peck, 155 F.3d at 274 (holding that distribution of Bibles in common areas of a high school as part of a neutral literature distribution policy in accordance with the Free Exercise Clause did not violate the Establishment Clause). 12. Doe v. S. Iron R-1 Sch. Dist., 453 F. Supp. 2d 1093 (E.D. Mo. 2006), aff d, 498 F.3d 878 (8th Cir. 2007). Judge Catherine Perry of the Eastern District of Missouri entered partial summary judgment on behalf of the plaintiffs on January 8, 2008, with regard to the First Amendment issues. Roark v. S. Iron R-1 Sch. Dist., 2008 WL , at *1 (E.D. Mo. Jan. 8, 2008). 13. The South Iron R-1 School District has allowed Gideons to distribute Bibles to fifth graders during class for many years. Doe, 453 F. Supp. 2d at Two parents of elementary students brought suit to enjoin this distribution. Id. at The district had no previous open forum policy in place but adopted a new policy ten days before the preliminary injunction hearing that allowed outside groups to distribute printed material to students. Id. at From the beginning, the court was skeptical of whether the school board would follow its new open forum policy because of the district s history: As the Board meeting minutes indicate, when Superintendent Lewis suggested that the Board adopt an open forum policy in the spring of 2005, the Board rejected this Washington University Open Scholarship

5 406 Journal of Law & Policy [Vol. 28:403 important question: If a public elementary school did adopt a limited public forum, could the Gideons activities fall in the gap between the two religion clauses of the First Amendment? The critical issue is whether Gideon Bibles can be distributed as part of a public forum, which requires a different degree of scrutiny with respect to viewpoint neutrality. 15 Any school policy that grants specific accommodations to the Gideons should be found unconstitutional under the Establishment Clause. However, there may be some situations where the Bibles can be legally distributed in a public forum. In fact, failure to allow such distribution because of its religious content could amount to a Free Exercise Clause violation. The characteristics of such a public forum policy are (1) the distribution occurs outside the classroom; (2) no school officials actively participate in the distribution; and (3) other, similar types of speech are also permitted. This third point is most important; if at any time the Gideons control the public forum to the point that the policy seems to be a demonstration of approval, the school has violated the Establishment Clause. 16 Some will contend that the distribution of Bibles in public schools is outside the scope of a public forum policy because Bibles are religious literature. 17 While that may be true in principle, such a proposition and voted to pretend like this meeting never happened. There was no further discussion of the open forum policy in the Board meetings until after this lawsuit was filed. Id. at 1098 (citation omitted). The evidence of the board s unwillingness to embrace an open forum policy continued to mount as the court considered motions for summary judgment. After the close of discovery and after parties briefed summary judgment motions, the board amended its policy again on August 7, Roark, 2008 WL , at *5. The new policy prohibits the distribution of literature by any school official. Id. However, [t]he School Board defendants may have voted to pass the new policy, but there is absolutely no indication that they did so because they realized that their old practice was flawed and possibly unconstitutional. Id. at * Different kinds of government involvement (1) namely occasions in which government has provided a forum for private speech and (2) occasions in which government has elected to regulate private speech require different degrees of scrutiny with respect to viewpoint neutrality. Manns, supra note 2, at Peck, 155 F.3d at 285 (holding that domination of a public forum by a certain religious group can amount to an endorsement of religion in violation of the Establishment Clause). 17. The court in South Iron stated in its preliminary injunction order that, Bibles are different. Bibles are religious literature and many Christians believe that they contain the word

6 2008] Filling the First Amendment Gap 407 rationale puts the courts in the position of determining which religious texts rise to the level of sacred religious speech. If the First Amendment means anything, it is that the government should not be meddling in the personal lives of citizens by deciding whether certain literature amounts to fundamental religious speech. 18 Part I of this Note will explain the history of First Amendment jurisprudence as it relates to the distribution of Gideon Bibles and other religious materials in public schools. Part II will discuss whether the courts were correct in their previous bans on Gideon Bible distribution and consider whether any different conclusion is necessary when schools have a limited public forum policy in place. Finally, Part III will propose guidelines for dealing with Gideon Bible distribution at public forum schools in the future, including an assessment of the South Iron case. I. THE DEVELOPMENT OF COMPETING FIRST AMENDMENT CONSIDERATIONS Although the First Amendment does not explicitly mandate a separation of church and state, 19 the Supreme Court has long held that of God. Bibles do not advertise club meetings or summer camps. The audience for a Bible is the person receiving one. Doe, 453 F. Supp. 2d at This was the basis for the court s argument that in-school distribution of Bibles would be unconstitutional in an elementary school even if the school had an open forum policy because Bibles are clearly different from other literature. The school district argued that Bibles should be allowed under the same rationale that some courts have used to allow the distribution of religious flyers in elementary schools and even Bible distribution in high schools. Id. at As eloquently stated by Justice Black, The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its unhallowed perversion by a civil magistrate. Engle v. Vitale, 370 U.S. 421, (1962). 19. U.S. CONST. amend. I ( Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ). Although the First Amendment applies only to the federal government, the Establishment Clause and Free Exercise Clause are operative against the states under the Fourteenth Amendment. U.S. CONST. amend. XIV ( [N]or shall any State deprive any person of life, liberty, or property, without due process of law. ). See Engle, 370 U.S. at 430 ( Under [the First] Amendment s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity. ). Washington University Open Scholarship

7 408 Journal of Law & Policy [Vol. 28:403 the Establishment Clause serves this purpose. 20 Historically, in order to avoid a violation of the Establishment Clause, the statute or government decision in question must pass the three-part test outlined in Lemon v. Kurtzman. 21 Under that test, it must (1) have a secular purpose; (2) neither advance nor inhibit religion; and (3) foster no excessive government entanglement with religion. 22 Although the First Amendment refers specifically to the passage of laws restricting religious freedoms or establishing religion, the Supreme Court held in Lee v. Weisman that when in-school religious activities are conducted or condoned by a public official, it amounts to a constitutional violation. 23 In some such cases, the religious activity has been deemed so pervasive that it is unconstitutional on its face, even without a Lemon inquiry. 24 The Court reasons that there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public 20. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State. Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)). The Court reasoned that the adoption of the First Amendment, in which Thomas Jefferson and James Madison played leading roles, was based on the same principles as the famous Virginia Bill for Religious Liberty that had been written to separate church and state in Virginia. Id. at Jefferson and Madison also played pivotal roles in the creation of that document. Id. The more controversial issue seems to be whether this wall is crumbling. After seemingly every Supreme Court decision dealing with a church-state issue, pundits weigh in on whether the new case law buttressed the separation of church and state or eroded Jefferson s so-called wall of separation. See, e.g., Mary Leonard, Supreme Court s Rulings Weaken Church-State Wall, B. GLOBE, June 17, 2001, at A16 (arguing that a case forbidding a school from discriminating against a religious club regarding the use of facilities was nothing more than an alternative way to reintroduce religion to elementary schools); William Van Alstyne, Trends in the Supreme Court: Mr. Jefferson s Crumbling Wall A Comment on Lynch v. Donnelly, 1984 DUKE L.J. 770 (1984) (arguing that a case sustaining a municipal nativity display against a constitutional challenge illustrated the government s increasing affiliation with religion) U.S. 602, (1971). 22. Id U.S. 577, 587 (1992) ( A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. ). 24. Id. In Lee, a religious official delivered a prayer during a middle school graduation ceremony. The Court held that [t]he government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Id. See also Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1171 (7th Cir. 1993) (holding the practice of Bible distribution unconstitutional under the notion of pervasiveness in Lee without relying on the structure of Lemon).

8 2008] Filling the First Amendment Gap 409 schools. 25 Also, a school cannot escape liability by ceasing in-school religious activities when a suit is filed. 26 A. Schools May Not Give Preferential Treatment to Bible Distribution Based on the Court s interpretation of the First Amendment, lower courts have held almost unanimously that it is unconstitutional for public school officials to give preferential access to the Gideons for the purpose of Bible distribution. 27 One rationale for outlawing the distribution of Bibles has been to preserve the right of parents to direct the religious upbringing of their children. 28 Other rationales are based on the Lemon criteria. Courts have held that there is no conceivable secular purpose associated with in-school Bible distribution. 29 In determining secular purpose, it is appropriate to ask whether government s actual purpose is to endorse or disapprove of religion. 30 The Supreme Court has rejected the idea that promotion of moral values can be secular. 31 Another issue the courts have addressed is whether Gideon Bible distribution creates an excessive government entanglement with 25. Lee, 505 U.S. at Meltzer v. Bd. of Pub. Instruction, 548 F.2d 559, 566 n.10 (5th Cir. 1977) ( [M]ere voluntary cessation of misconduct when a suit is filed does not necessarily render a case moot or remove the necessary justiciability. ). 27. Marc D. Stern, Religion and the Public Schools: A Summary of the Law February 2006 Update, in SIXTH ANNUAL SCHOOL LAW INSTITUTE 7, 26 (PLI/NY, Course Handbook Series No. F-160, 2006). 28. Brown v. Orange County Bd. of Pub. Instruction, 128 So. 2d 181, 185 (Fla. Dist. Ct. App. 1960) ( The right of the parent to teach his own faith to his child, or to teach him no religion at all is one of the foundations of our way of life and enjoys full constitutional protection. ) (quoting Schempp v. Sch. Dist., 177 F. Supp. 398, 407 (D.C. Pa. 1959)). This concern can be traced to the Supreme Court s ruling in Pierce v. Society of Sisters, 268 U.S. 510 (1925), where it held, The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Id. at Jabr v. Rapides Parish Sch. Bd., 171 F. Supp. 2d 653, 660 (W.D. La. 2001) (holding that a principal who distributed New Testament Bibles to fifth graders in his office had no secular purpose). 30. Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (holding an Alabama school prayer and meditation statute unconstitutional because it had no secular purpose). 31. Sch. Dist. v. Schempp, 374 U.S. 203, 224 (1963) ( [E]ven if its purpose is not strictly religious, it is sought to be accomplished through readings, without comment, from the Bible. Surely the place of the Bible as an instrument of religion cannot be gainsaid.... ). Washington University Open Scholarship

9 410 Journal of Law & Policy [Vol. 28:403 religion. In Tudor v. Board of Education, 32 a public school board passed a resolution that allowed the Gideons to distribute Bibles in schools at the close of the day to students whose parents had signed permission slips. 33 The court held that even this would be viewed as an entanglement with religion. 34 Finally, courts have outlawed Bible distribution as a state effort to advance Christianity at the expense of other religions. 35 Young students cannot be expected to make the subtle distinctions between instructors invited by the school and those who come of their own accord. 36 In instances where Gideons have been allowed to distribute Bibles in school, it would be naïve to believe that the school administration was neither involved nor interested in getting each student a New Testament Bible. 37 Some proponents of Bible distribution have tried to argue that Gideons have a free speech right to distribute Bibles in school, but this notion has been rejected by the courts. 38 In Berger v. Rensselaer Central School Corp., the school district argued that (1) school personnel were not involved in the Bible distribution, and (2) the school had a public forum policy. 39 The court dismissed this argument as a definitional coup, 40 pointing out that [a] public A.2d 857 (N.J. 1953). 33. Id. at In the eyes of the pupils and their parents the board of education has placed its stamp of approval upon this distribution and, in fact, upon the Gideon Bible itself. Id. at [A] government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions). Nothing could be more unabashedly Christian than the New Testament Bibles. Jabr v. Rapides Parish Sch. Bd., 171 F. Supp. 2d 653, 660 (W.D. La. 2001) (citation omitted). 36. Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1166 (7th Cir. 1993). 37. [T]he image of hundreds of students being marched into an auditorium for the yearly distribution of Bibles cannot but leave the imprimatur of state involvement. Id. 38. Id. at Id. at The school district argued that it was merely a neutral conduit of ideas. Id. at However, the facts did not support this assertion. Bibles were distributed for decades in the presence of teachers, and students were instructed to return the Bibles to their teachers if they did not want them. Id. at Also, the record revealed no regular talks or literature distribution by any group other than the Gideons. Id. at Id. at 1165 (holding that the free speech argument distorts the facts and misconstrues the law ).

10 2008] Filling the First Amendment Gap 411 school cannot sanitize an endorsement of religion forbidden under the Establishment Clause by also sponsoring non-religious speech. 41 B. Schools with Public Forums May Not Discriminate on the Basis of Religious Content Even as courts were outlawing Bible distribution on Establishment Clause grounds, a separate line of cases established the doctrine that public schools could not deny access to a group or writing on the basis of its religious content without violating the Free Exercise Clause. 42 Such a distinction would amount to viewpointbased discrimination. 43 Widmar v. Vincent, 44 the leading case in this area, held that [i]n order to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the [school] must therefore satisfy the standard of review appropriate to content-based exclusions. 45 Once a school has created a public forum policy, it can only deviate from that policy if the viewpoint-based regulation serves a compelling government interest and is narrowly tailored to achieve that interest Id. at The court also noted that it is clear that Rensselaer schools despite the open policy were not overrun with members of other religions vying for the students faith.... [T]he salient point here is that Rensselaer school classrooms were not, in fact, open and active fora for competing ideas, contrary to assertions by the Corporation. Id. at Rosenberger v. Rector & Visitors, 515 U.S. 819 (1995) (holding that a public university cannot withhold funding from a student group because of the religious nature of the group s message). See generally Lamb s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) ( [T]he government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject. ) (quoting Cornelius v. NAACP Legal Def., 473 U.S. 788, 806 (1985)). 43. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint. Rosenberger, 515 U.S. at U.S. 263 (1981). 45. Id. at In Widmar, members of a religious group at a state university brought an action challenging the university s policy of excluding religious groups from its open forum policy that made campus facilities available to students. Id. at This notion was codified in the Equal Access Act, 20 U.S.C (2000), which provides that no school that receives federal funding and has a public forum policy can deny access to a student group on the basis of religious content. Id. 4071(a). The law defines a limited public forum as any time a public school has granted an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time. Id. 4071(b). 46. Widmar, 454 U.S. at 270. The Court held that the school s interest in complying with the Establishment Clause was indeed a compelling interest, but an equal access policy would Washington University Open Scholarship

11 412 Journal of Law & Policy [Vol. 28:403 Courts have applied this viewpoint-discrimination test to religious expression in public elementary schools. 47 In Hills v. Scottsdale Unified School District, 48 the Ninth Circuit considered the constitutionality of a literature distribution program that prohibited literature of a religious nature. 49 The court found that the policy amounted to a limited public forum, and therefore the school district engaged in viewpoint discrimination by refusing to allow the distribution of religious literature. 50 In essence, the courts have determined that the danger that children will misperceive the endorsement of religion is no greater than the risk they will perceive a hostility toward religion if the religious expression is excluded. 51 not be incompatible with the First Amendment. Id. at In Good News Club v. Milford Central School, 533 U.S. 98 (2001), the school district had opened its limited public forum for events pertaining to the welfare of the community. Id. at 108. While finding that teaching morals and character development to children is a legitimate government interest, the Court held that a school s exclusion of a Christian children s club from meeting after hours at the school based on its religious nature was unconstitutional viewpoint discrimination. Id. at The Good News Club could not be excluded simply for addressing morals and character development from a religious perspective. Id. at F.3d 1044 (9th Cir. 2003). 49. Id. at The stated purpose of the open forum policy was to serve as a community service to students and their parents by letting them know about community events: summer camps, art classes, or scouting activities, for example. Id. at The plaintiff in this case ran a Christian summer camp and sought to have his brochures distributed by the school. Id. at When he was denied access to the forum based on the religious content of his brochures, he brought suit. Id. 50. Id. at 1050 ( Restrictions on speech in the context of a limited public forum must be both viewpoint neutral and reasonable in light of the purpose served by the forum. ). There was no risk in this case of an Establishment Clause violation because the brochures were not integrated into the curriculum, the events were not school-sponsored, the camp did not take place on school grounds, and the ultimate decision on whether the child would attend the camp was left up to the parents. Id. at The court also addressed the value of teaching students about the First Amendment: [T]he desirable approach is not for schools to throw up their hands because of the possible misconceptions about endorsement of religion, but that instead it is [f]ar better to teach [students] about the First Amendment, about the difference between private and public action, about why we tolerate divergent views. Id. at 1055 (quoting Hedges v. Wauonda Cmty. United Sch. Dist. No. 118, 9 F.3d 1295, (7th Cir. 1993)). However, the court did consider the possibility that religious groups might take advantage of the literature distribution policy in an attempt to proselytize. [T]he District is not obligated to distribute material that, in the guise of announcing an event, contains direct exhortations to religious observance; this exceeds the purpose of the forum the District created. Id. at Milford Cent. Sch., 533 U.S. at 118. We decline to employ Establishment Clause jurisprudence using a modified heckler s veto, in which a group s religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive. Id. at

12 2008] Filling the First Amendment Gap 413 C. Filling the Gap: The Collision of Free Exercise Clause and Establishment Clause Concerns in Schools with Public Forums The issue of religious literature distribution in public schools with open forum policies brings the Free Exercise Clause and the Establishment Clause into tension with one another. 52 The Supreme Court has addressed this tension by pointing out a gap between the two: Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference. 53 It is within this gap that courts have identified limited situations where religious literature distribution might be constitutionally acceptable. The Fourth Circuit used the viewpoint-discrimination standard to erode the clear prohibition on the in-school Bible distribution by nonstudents in Peck v. Upshur County Board of Education. 54 In Peck, the school district had a long-standing policy of allowing non-student, private groups to distribute literature in public schools. 55 Under this policy, the district allowed a local religious group to distribute Bibles in the school, but placed strict requirements on the time, place and manner of the distribution to ensure that the group received no preferential treatment. 56 The Fourth Circuit held that this practice did 52. This is not, by any means, the only issue that creates this tension. Consider, for example, the issue of legislative prayer: [L]egislative prayer is permissible under the Establishment Clause; however, someone cannot demand, on the strength of the Free Exercise Clause, that a legislature support such prayers. Alan Trammell, The Cabining of Rosenberger: Locke v. Davey and the Broad Nondiscrimination Principle that Never Was, 92 VA. L. REV. 1957, 1959 (2006). 53. Walz v. Tax Comm n, 397 U.S. 664, 669 (1970). See also Locke v. Davey, 540 U.S. 712, 719 (2004) ( [T]here are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause. ) F.3d 274 (4th Cir. 1998). 55. Typical groups who were granted access to the schools included Little League, Boy Scouts, Girl Scouts, 4-H, and the Women s Christian Temperance Union. Id. at 275. The board s written policy had historically denied access to groups wishing to distribute religious or political literature, but at the request of a local religious group, the board held the policy to allow the passive distribution of such materials in schools. Id. 56. The school s limitations on Bible distribution were quite extensive. The Bibles were to be made available on a single day in a common area of the school and any remaining Bibles were to be removed at the end of the day. Id. at 277. No school personnel was to be involved in setting up the table and no one was allowed to stand by the table and encourage students to take a Bible; there was only to be a sign saying Please feel free to take one. Id. The school also Washington University Open Scholarship

13 414 Journal of Law & Policy [Vol. 28:403 not violate the Establishment Clause because it was plainly adopted, not to advance religion, but for the secular purpose of open[ing] a forum for speech. 57 The court also dispatched with concerns about the coercive power of school endorsement, pointing out that schools do not endorse everything they fail to censor. 58 Some other circuits have embraced the Fourth Circuit s rationale in Peck over the last decade. 59 These opinions rely heavily on the Supreme Court s ruling in Good News Club v. Milford Central School, 60 pointing out that the Court has never ruled that a school's practice might amount to an impermissible endorsement of religion because of the impressionability of the school's young students. 61 made it clear that any materials representing other religious beliefs would be given the same treatment if the school was asked to distribute them. Id. 57. Id. at 279 (citation omitted). 58. Id. at 283 (citing Bd. of Educ. v. Mergens, 496 U.S. 226, 250 (1990)). However, the court did acknowledge that a different standard may apply to elementary schools, where the concerns regarding coercion are more pronounced. [W]e are convinced that a majority of the Supreme Court might well believe that these concerns should be and are sufficient in the elementary school context to invalidate such a policy. Id. at 288 n.*. 59. See generally Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004) (holding that a school would not violate the Establishment Clause if it allowed a religious organization access to a limited public forum); Rusk v. Crestview Local Sch. Dist., 379 F.3d 418 (6th Cir. 2004) (holding that distribution of religious flyers did not constitute endorsement of religion by school, as would violate the Establishment Clause). While embracing the Fourth Circuit s rationale in Peck, the Sixth Circuit in Rusk disagreed with the Fourth Circuit s assertion that the same reasoning does not apply to elementary schools. Rusk, 379 F.3d at 424. The Sixth Circuit observed that Peck was decided before Milford, in which the Supreme Court rejected the age and impressionability of elementary school students as grounds for ruling that allowing a religious club to meet in school classrooms would violate the Establishment Clause. Id U.S. 98 (2001). 61. Rusk, 379 F.3d at 421. In fact, at least one medical expert has testified that in order for young children to perceive an endorsement of religion, they would need to witness direct actions or statements of endorsement by school officials. Child psychiatrist Peter Fink testified on behalf of a school district at the trial in Sherman v. Community Consolidated School District 21, No. 92 C 6674, 1993 WL (N.D. Ill. 1993), aff d, 8 F.3d 1160 (7th Cir. 1993). He contended that children of Cub Scout age... don t get into the subtleties of abstraction unless there are literal and direct behaviors or statements made by individuals. Id. at *6. Although that case involved a challenge to the school s pledge of allegiance policy rather than school prayer, the court was forced to confront similar issues of peer coercion and state endorsement. It determined that while peer pressure from fellow students will likely exist in any school environment, there is practically no risk of state coercion when the activities take place outside the classroom and school officials are not directly involved. Dan Mbulu, First Amendment: Extending Equal Access to Elementary Education in the Aftermath of Good News Club v. Milford Central School, 16 REGENT U. L. REV. 91, 111 ( ).

14 2008] Filling the First Amendment Gap 415 D. Defining Religious Literature A key element of this discussion is whether certain forms of religious speech pose a greater threat to the Establishment Clause than others. Although there has been no debate regarding whether Gideon Bibles are religious by nature, 62 courts have been less clear in whether Bibles deserve a different level of First Amendment protection than other forms of religious literature. In the South Iron preliminary injunction order, the court suggested that there is a fundamental difference between religious flyers and the Bible because many people accept the Bible as the word of God. 63 This stance is supported in Hills, where the Ninth Circuit held that although flyers for religious camps could not be excluded under the district s public forum policy, Bibles could be. 64 The distinction seems to turn on the definition of religion, which the Ninth Circuit argued is generally a common term that is sufficiently clear to persons of ordinary intelligence. 65 However, the Supreme Court has held that an individual s understanding of religion cannot be put on trial in First Amendment cases. 66 Banning a certain type of literature from a public forum 62. See Tudor v. Bd. of Educ., 100 A.2d 857, 866 (N.J. 1953) (holding that the Gideon Bible is a sectarian book). See also Goodwin v. Cross County Sch. Dist. No. 7, 394 F. Supp. 417, 428 (D.C. Ark. 1973) (holding that Gideon Bible distribution is an exercise of religious character). 63. See supra note 17. The court reinforced this notion in its summary judgment order, stating that common sense tells us that a flyer advertising a church camp is different from a Bible. A person need only read the Bible to be confronted with a religious viewpoint, but reading a flyer does not have the same effect the flyer requires a person to take follow-up action. Roark v. S. Iron R-1 Sch. Dist., No. 4:06 CV 392 CDP, 2008 WL , at *15 (E.D. Mo. Jan. 8, 2008). 64. Hills v. Scottsdale Unified Sch. Dist., 329 F.3d 1044, 1053 (9th Cir. 2003). The court held that the limited public forum was never opened for pure discourse and as such, the district would be well within its rights to exclude a religious tract such as the Gideon Bible that was aimed at converting students to a particular belief. Id. The court also pointed out that the brochures themselves could cross that line if they stated: Did you know that if a child does not come to the knowledge of JESUS CHRIST, and learn the importance of Bible reading by age 12, chances are slim that they ever will in this life? We think it is important to start as young as possible! Id. at Id. at United States v. Ballard, 322 U.S. 78, 87 (1944) ( If one could be sent to jail because a jury in a hostile environment found those teachings false, little indeed would be left of religious freedom. ). See also Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. Washington University Open Scholarship

15 416 Journal of Law & Policy [Vol. 28:403 because it is deemed religious is viewpoint-based discrimination. Because free speech includes the right to distribute literature, a public forum policy cannot include a content-based restriction on literature distribution unless it is narrowly tailored to achieve a compelling state interest. 67 The Supreme Court has upheld the constitutionality of the provisions of the Equal Access Act prohibiting schools with public forum policies from discriminating on the basis of content defined as religious, 68 and therefore the Court has implied that complying with the Establishment Clause is not a sufficiently compelling interest to regulate speech on the basis of religious content in an open forum. 69 Furthermore, a school board cannot be placed in a position of determining what constitutes orthodox religious material. 70 II. TWO RIGHT ANSWERS: DO BIBLE DISTRIBUTION BANS AND PUBLIC FORUM POLICIES BOTH ACCOUNT FOR THE STANDARDS ESTABLISHED IN LEMON AND LEE? In analyzing any First Amendment religion issue, it is important to consider whether lower court decisions are in accord with the Supreme Court mandates set forth in Lemon and Lee. As recently as the early 1990s, the Supreme Court spurned the invitations of many to scrap the Lemon test, so its three-prong approach remains the 707, 714 (1981) ( [R]religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection. ). 67. Gregoire v. Centennial Sch. Dist., 907 F.2d 1366, (1990). 68. Bd. of Educ. v. Mergens, 496 U.S. 226, 249 (holding that the Act s purpose was not to endorse or disapprove of religion ). 69. See Eugene C. Bjorklun, Distribution of Religious Literature in the Public Schools, 68 EDUC. L. REP. 957, 960 (1991). The author argues that the implication of Mergens is that the unimpeded distribution of religious literature must be allowed in any context where the distribution of secular literature is allowed. See id. 70. In Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982), a majority of the Supreme Court held that defendant school board was not entitled to summary judgment on a claim that it had reached beyond its constitutional discretion in removing certain books from the school libraries. Id. at 872. In the plurality opinion, Justice Brennan wrote that local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion. Id. (quoting W. Va. Bd. of Educ. V. Barnette, 319 U.S. 624, 642 (1943)).

16 2008] Filling the First Amendment Gap 417 governing law. 71 However, courts can also rely on Lee to reject any religious activity that is so pervasive as to constitute a statesponsored religious activity. 72 A. Bible Distribution Bans vs. Lemon Decisions in the wake of Lemon that have banned Bible distribution in public schools without public forum policies have consistently applied the three-part test. 73 The courts that have banned Gideon Bible distribution in schools without public forum policies have decided these cases correctly for three reasons: (1) the inherent pressure to accept Bibles; (2) the infringement on parental rights; and (3) the appearance of preferential treatment for Christianity. First, children in schools where Bibles are distributed during the day will likely feel coerced to participate in religious activity if the majority of their peers are receiving Bibles. 74 This is the very essence of the alternate Establishment Clause test that the Supreme Court applied in Lee. 75 Even if children are given an alternative to accepting the Bibles, it is unrealistic to expect children in the middle of a classroom setting to decline the Bibles. 76 Although students might technically have the ability to refuse the Bibles just as the students in Lee could 71. Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160, 1169 (7th Cir. 1993). The Seventh Circuit points out that although the Court in Lee refrained from overruling the Lemon approach, that case was resolved without reference to the three-prong test. Id. 72. Lee v. Weisman, 505 U.S. 577, 587 (1992). 73. See Jabr v. Rapides Parish Sch. Bd., 171 F. Supp. 2d 653, (W.D. La. 2001) (holding that a district policy allowing a principal to distribute Bibles in his office violated all three prongs of the Lemon test). See also Meltzer v. Bd. of Pub. Instruction, 548 F.2d 559, (5th Cir. 1977) (holding that a board resolution allowing Bible distribution was inconsistent with Lemon because it lacked a secular purpose and the primary effect of the statute was to advance religion); Berger, 982 F.2d at 1171 (holding that a Bible distribution policy advances the Gideons beliefs and entangles the government in religion). 74. Tudor v. Bd. of Educ., 100 A.2d 857, 866 (N.J. 1954) ( The law of imitation operates, the non-conformity is not an outstanding characteristic of children. The result is obvious pressure upon children to attend. ) (quoting Ill. ex rel. McCollum v. Bd. of Educ., 333 U.S. 203, 227 (1948) (Frankfurter, J., concurring)). 75. Lee, 505 U.S. at 587 ( It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.... ). 76. That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school s domain. McCollum, 333 U.S. at 227. Washington University Open Scholarship

17 418 Journal of Law & Policy [Vol. 28:403 technically walk out of the graduation ceremony to avoid a prayer 77 the First Amendment prohibits the government from putting children in this difficult position. 78 The distribution of Gideon Bibles also robs parents of their right to direct the religious upbringing of their children, whether that means teaching a certain faith to their children or teaching their children no faith at all. 79 If the faith of a child is developed inconsistently with the faith of the parent and contrary to the wishes of the parent, interference with the familial right of the parent to inculcate in the child the religion the parent desires, is clear beyond doubt. 80 Finally, regardless of the school board s intent, it is clear that a policy allowing the distribution of Bibles in the absence of other literature distribution places a stamp of approval on the Gideon version of the Bible. 81 Elementary school students should not be expected to distinguish between speakers invited by the schools and those whose visit is self-initiated, even when they are told how the distributors arrived at the school. 82 B. Public Forum Policies vs. Lemon The dangers presented by Bible distribution are eliminated when Bibles are distributed merely as part of a limited public forum policy. Cases that have allowed the distribution of religious materials in public schools with open forum policies have also carefully applied 77. Lee, 505 U.S. at In Lee, the school district argued that a prayer held by a Rabbi during a graduation ceremony could not be considered an inducement to religion because the ceremony was optional and students could therefore choose not to attend if they opposed the prayer. Id. The Court rejected this argument, holding that [e]veryone knows that in our society and in our culture high school graduation is one of life s most significant occasions. Id. at Berger, 982 F.2d at See Brown v. Orange County Bd. of Pub. Instruction, 128 So. 2d 181, 185 (Fla. Dist. Ct. App. 1960). 80. Id. at Meltzer v. Bd. of Pub. Instruction, 548 F.2d 559, 576 (5th Cir. 1977) ( [T]he school board s use of the school system as a means of distribution amounts to its placing, at least in the eyes of children and perhaps their parents, its stamp of approval upon the Gideon version of the Bible, thus creating an unconstitutional preference for one religion over another. ). 82. Berger, 982 F.2d at